JUDGMENT

Scott-Smith, J. - This is a second appeal from the order of the District Judge, Attock, dismissing the plaintiff's suit for possession of a site in Bhagni village on the ground that it was barred by time. The site together with the house on it was sold by public auction in execution of a decree against Karim, a non-proprietary resident on the 28th July 1910. The sale-certificate was granted on the 4th October of the same year. The present suit was lodged on the 16th November 1918 by the plaintiff as representing the proprietary body of the village on the allegation shat Karim had a saleable interest in the materials of his house only and not in the site in dispute Both the lower Courts held that the suit was barred by time under Article 120 of the First Schedule of the Limitation Act. The lower Appellate Court begins by saying that the sale of the site in dispute as the property of Karim was not void, but voidable at the instance of the proprietary body. I am not able to agree with this proposition. The site under the house of a non-proprietor in a' village ordinarily belongs to the pro-! prietors and its sale without the consent of the proprietary body is void' and not voidable. The sale of thesite of a residential house may perhaps be voidable and not void, but that is quite another matter. If A's property is sold by an unauthorised person without his consent, such sale is surely ab initio void and not merely voidable. It has been suggested by Counsel for the respondents that Article 12 of the First Schedule of the Indian Limitation Act is applicable. That Article provides for the setting aside of a sale in execution of a decree of a Civil "Court, but there is ample authority for the proposition that the parties alone are bound by that Article, (see the commentary in Mr. Rustomji's Law of Limitation, 3rd Edition, page 265). In Saif-ud-din v. Hansraj [1911] 15 P.R. 1912 it was held that where the plaintiff in a suit for possession of property sold in execution of a decree, was the original owner of the property and was not a party to the decree under which the sale took place, nor a representative of any of the parties, and was consequently in a position to ignore the sale altogether, Article 12 of the Limitation Act has no application and the suit falls under Article 144, Again, Article 91 of the First Schedule is not applicable. It provides for the cancellation or setting aside of an instrument not otherwise provided for. Here, again, the Article binds only the parties to the instrument and not strangers. I, therefore, hold that the present suit is governed by Article 144 of the First Schedule and is not barred by time.

2. It appears that Shah Dad, one of the vendees and a defendant in the Trial Court, died even before the appeal was filed in the lower appellate Court, but was not made a party thereto. His two sons, Razi Khan and Bazid Khan, are also vendees and parties to the suit, and Mr. Kureshi says that they are his sole legal respresentatives. No objection was made in the lower Appellate Court to the effect that he had any other representatives besides these two sons, and Mr. Bhagat on behalf of the respondents, is unable to say that any other representative exists. No question of abatement therefore, arises. The appeal is accepted and the order of the lower appellate Court being set aside the case is remanded for decision on the merits under Order 41 Rule 23, Civil Procedure Code. Stamps in this and in the lower appellate Court will be refunded and other costs will be costs in the case.